New pillars of wisdom

Shane Green

Dr David Penington's report report initially convinced then premier Jeff Kennett to pursue cannabis decriminalisation, but the Liberal leader later changed his mind.

VICTORIA'S Legislative Assembly oscillates between bearpit brutality and boredom, from the hand-to-hand combat of question time to the weary quiet of a sparsely populated chamber during a late-night debate. But occasionally, the State Parliament witnesses something beyond the ordinary, a moment that transcends the stuff of day-to-day politics.

Such was the mood on the last day of autumn in 1996, when MPs rose from the deep green benches of the chamber to speak on a remarkable proposal: should Victoria decriminalise marijuana?

That things had come to this point was the product of what appeared to be an unlikely alliance: Jeff Kennett, the advertising man who became the state's crash-through Liberal premier, and David Penington, former dean of medicine and vice-chancellor at Melbourne University.

Dr David Penington remains a strong advocate for drug decriminalisation and is frustrated by what he considers to be a lack of courage in the current political climate. Photo: Simon Schluter

Yet like Kennett, Penington was used to controversy, having built a reputation as someone prepared to challenge and confront, both in public health and academia.

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Only two years before, Kennett declared he would never decriminalise marijuana ''as long as I remain premier''. But faced with mounting deaths caused by heroin, he realised a new approach was needed and asked Penington to head a drug advisory council inquiry.

Kennett was indicating he thought the time was right to decriminalise the use of marijuana. Penington's inquiry agreed.

So the groundwork was prepared for a momentous change: Victoria, under a conservative government, appeared poised to lead the nation in drug law reform.

The collapse of that bold idea was swift, as Kennett's view shifted and the Liberal and National parties reacted instinctively against the proposal. By June of 1996, decriminalisation was off the table, representing a key turning point in the drug debate, the influence of which continues to this day.

Witness the powerful rejection by Prime Minister Julia Gillard of the recent Australia21 report that called for drug decriminalisation and argued the war on drugs had failed.

Today, Jeff Kennett and David Penington are at polar extremes on the issue of decriminalisation. Kennett is more strongly opposed than ever; Penington remains an active and powerful advocate.

The mood in Victoria in the early 1990s was for change. Voters had swept Labor from power and elected Kennett and the Coalition to repair the financial wreck the state had become.

Few leaders have embraced a mandate to the extent that Kennett did. He cut a swath through the public service, closed schools and sacked teachers. Kennett, with his treasurer, Alan Stockdale, embarked on an aggressive agenda to restore the state's finances and its AAA credit rating, staring down any opposition.

As the immediate crisis passed, Kennett also widened his range of interests to include social policy. To this point, his position on the decriminalisation of drugs had appeared unequivocal. At the start of 1994, then opposition leader John Brumby called for Victoria to adopt laws similar to South Australia and the ACT, where marijuana users faced fines rather than criminal convictions.

In typical style, Kennett rounded on Brumby. ''The Labor Party now has a policy that is quite clearly soft on the use of drugs … we are quite happy that this be an election issue,'' he said.

But as the election drew closer, Kennett experienced a dramatic change of heart. Heroin supplied from Asia had become a critical problem, with almost 300 deaths a year in Victoria - close to the road toll.

Kennett turned to Penington in the final days 1995, asking him to head an inquiry with a view to drug law reform, just as the eminent academic and scientist was standing down as Melbourne University's vice-chancellor.

As Penington relates in his autobiography, Making Waves, he was ''clearing the decks'' in the vice-chancellor's office when Kennett called, asking him to chair an inquiry to find ''the solution'' to illicit drugs. Penington's track record was distinguished - he had headed the AIDS taskforce under the Hawke government, responsible for the contentious Grim Reaper campaign. The deadline was incredibly tight - eight weeks, so laws could be passed before the election. He eventually agreed. He writes of how during a hot December and January, he and his council worked long hours out of an office in Spring Street, well after air conditioning had been turned off.

The task was huge, as the inquiry researched the situation here and overseas. The Penington inquiry held town hall meetings, spoke to the experts, including the police drug squad and drug users themselves. The deadline was eventually extended to March.

As Penington writes in his book, there were no simple answers. The report presented to Kennett contained the key recommendation to decriminalise the use and cultivation of small amounts of marijuana for personal use. This would break the nexus between people wanting to use marijuana seeking out drug dealers and being introduced to harder drugs. The report also called for an education campaign on the dangers of marijuana use, and diversion of drug users into treatment.

The election intervened, and Kennett was returned with a thumping majority. Would decriminalisation of marijuana use be part of a second-term agenda? Kennett had certainly left the door open before the election, suggesting he would accept the recommendations of the Penington report. But on the eve of the election, he appeared to soften his stance.

In an interview with Beat magazine, he revealed three of his children had tried marijuana but they opposed decriminalising it. He suggested a public debate and a possible conscience vote by MPs.

Nevertheless, there was a strong association between Kennett and decriminalisation, which helped reinforce his capturing of the youth vote.

Kennett argues this wasn't a ploy to attract votes. Rather, his thinking had shifted by the time the report was handed to him.

''By the time the Penington report came down which recommended the decriminalisation, I had personally done a lot more reading and had learnt a lot more about the drug and its affect, particularly on the psychosis of people,'' the former premier says.

The generalisation was that it was regular users most at risk, Kennett says. But it also became clear that just one use could have an adverse effect on some individuals.

''Therefore, by the time David came down with his report, and given my reputation of not having inquiries unless I'm prepared to accept them in the full, I found myself embarrassed in one sense for David, who had done this wonderful piece of work,'' he said.

''But from a political point of view and because of my concern, I had changed my views only to the point that I thought there was enough evidence to suggest my original attitude was wrong. And it was for that reason that I put it on hold.''

The comments shed some more light on the events of the time. After the election, Kennett went ahead with the historic sitting of Parliament on May 31.

There was undoubtedly a sense of occasion as MPs gathered that day. The politics of Victoria had become intensely combative in the Kennett era - a reflection of his style, as much as anything else. A day in which MPs were free to express their personal views on such a critical issue was a rare and refreshing event.

David Penington began the day by telling the MPs that in 1995, 388,000 Victorians said they had used marijuana in the past year, most of whom were aged 14 to 34.

''Will we leave these young Victorians at the mercy of rapacious drug traffickers, inevitably to be exposed to the harder drugs over time, or will we make a realistic attempt to attack the vested interests, to break one link with traffickers where we can and to put in place drug education programs which young people will respect, so as to curb their use and abuse of the drug?'' he said.

One by one, MPs rose to give their personal views. Kennett did not reveal his stance but indicated things could not stay the same. John Brumby strongly backed the Penington recommendations, and declared the war on drugs lost.

But as the MPs rose to speak, it became clear that the Coalition backbench was strongly opposed. The toughest position came from Gary Rowe, then Liberal MP for Cranbourne, who went as far as to raise the issue of death penalties for drug traffickers: ''Perhaps our Asian neighbours to our north go a bit far when they use firing squads, but then again, perhaps not. Perhaps as a multicultural society Australia should embrace some of the values on law enforcement of our Asian neighbours.''

When the marathon debate finished, the numbers told the story: 16 coalition MPs were against decriminalising marijuana, while only one, Doncaster MP Victor Perton, supported it - proposing fines for public use.

There had also been rumblings from local Liberal and National branches, with talk of preselections being at risk for MPs who supported decriminalisation. The Police Association was also an influential and strong critic.

Even if Kennett had maintained his original support for decriminalisation, it was clear that it would never win the support of Parliament.

Penington recalls being told by Kennett that there was no way legislation would pass the upper house. ''He told me that personally,'' he says. ''I just had to accept that.''

In Making Waves, Penington writes of being ''bitterly disappointed'' but acknowledges they were far ahead of public opinion.

He credits Kennett with taking other action: the Turning the Tide program included a successful youth substance abuse agency, and treatment and rehabilitation services were improved.

Despite failed attempts at a national heroin trial and the Bracks government bid for safe injecting rooms being defeated in the upper house, decriminalisation has not returned to the political agenda in such a significant way.

In the 16 years since, the once-united Kennett and Penington have taken different paths in the debate.

Kennett, of course, lost government in 1999, and has since reinvented himself as chairman of beyondblue, exposed to the devastating consequences of mental illness. ''I'm more strongly opposed than ever before. Absolutely,'' says Kennett. ''I now have substantial evidence, research from around the world … that marijuana, consistently used, and in the hands of someone with a chemical make-up that might be looser than others, can have a very damaging effect.''

He is critical of the push by the AFL, along with other sporting bodies, to remove marijuana from the list of performance enhancing drugs.

''It is true the marijuana is not a performance enhancing drug. I agree with that and therefore they are technically right. But the message they are sending us in my opinion is terribly wrong.

''It is better to stay with the message of being opposed to drugs and to preventing their spread and abuse than to, in my opinion, argue the technicality and therefore say to people, particularly players and others, it's all right to have the drug.''

KENNETT has watched the latest debate triggered by the Australia21 report. ''We keep having the debate, and we don't act. And we don't act because perhaps we're a little cautious.''

Society, he says, is becoming more and more permissive. ''I don't necessarily think that it leads to a better society. So I've got to say I hear the comments, I hear the demands that it be decriminalised. I'm sorry, but I will always be an advocate against doing so.''

David Penington, meanwhile, remains a strong advocate, and was ''absolutely delighted'' by the Australia21 report.

''The fundamental problem is that we will never get major illicit drugs policy reform without a change in public opinion,'' he says. ''Politicians are scared of it. They just don't want to be seen as even contemplating it, because the ordinary view in the public is that drugs are terrible - which they are - that they are associated with crime and corruption, which they are.

''But the fact of the matter is that they are associated with crime and corruption because of prohibition. But that's the link that most people don't see.

''And they see the possibility of any change in the legal framework as making drugs more freely available. And of course the evidence is that the prohibition has not prevented the drugs being freely available, and there's ample evidence of that year after year from the Bureau of Statistics surveys in Australia and all that's happening elsewhere in the world.''

Penington wasn't surprised by Julia Gillard's rejection of the Australia21 proposals. ''That's why she's taken the position she's taken on gay marriage and all those sort of things, because she's appealing to the uneducated, conservative emotional reactions to all sorts of things,'' he says.

A move to decriminalise would require courageous leadership - something Penington is unable to detect in Australia today.

''It's not part of our political system at the moment on either side of politics. They just don't want to know.''